Tensions were rising at Binghamton University last November as a crowd of protesters surrounded a table where students displayed images of guns and proclaimed their right to carry them. As the shouting escalated, the university police escorted the conservative students away but didn’t arrest any protesters — a decision that would prompt complaints of bias and a lawsuit from campus Republicans.
It’s the kind of controversy that usually plays out within the confines of a campus, and sometimes in the courts, but this one has also attracted the attention of the U.S. Department of Education. Since President Trump issued an executive order on free speech last year, Binghamton is at least the third university to be put on notice that it is under federal investigation. Free-speech experts predicted more will follow.
Fordham promises to protect political dissenters from prevailing political orthodoxies, not to crush them.
Trump’s executive order threatens to withhold federal money from colleges that fail to protect free speech. The order directs federal agencies to ensure that institutions receiving U.S. research or education grants “promote free inquiry.” Critics viewed the directive as unnecessary government intervention and pointed out that the First Amendment already requires public institutions to do that.
But the order also seeks to hold colleges accountable for their own institutional policies on free speech. Private colleges that aren’t bound by the First Amendment often have policies that mirror First Amendment protections, and many public colleges have institutional protections that extend beyond what’s required by federal law.
Last month, U.S. Education Secretary Betsy DeVos announced a final rule outlining how her department planned to carry out Trump’s order. The rule won’t take effect until November 23, but the department has already begun moving ahead with investigations.
In the three known cases the Education Department has pursued since Trump issued his order — the others involve UCLA and Fordham University — it has sided with conservative parties.
Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, said that while his organization had expressed concerns about all three cases, the Education Department “needs to have a strong track record of doing this evenhandedly. That’s how they can gain or lose the public trust.”
Free-speech threats come from both the left and the right, he said. FIRE, an advocacy group, has helped secure settlements for, among others, a student who was detained and questioned after distributing socialist literature, and a professor who was removed from the classroom for proclaiming, “I affirm that I am Antifa.”
Michelle Deutchman, executive director of the University of California Center for Free Speech and Civic Engagement, called the federal rules well intentioned but unnecessary.
“The University of California — along with other public university systems — has long demonstrated a commitment to safeguarding and promoting expression on campus,” she wrote in an email to The Chronicle on Thursday. “Tying department funding to final, nondefault judgments by state or federal courts will force universities either to pour staggering amounts of money into defending themselves against mounting lawsuits or decide not to litigate in order to preserve precious resources. This creates an incentive for universities to take the path of least resistance: compromising their integrity in service of maintaining budget for their educational mission.”
‘Improperly and Abusively Targeted’
In June, the Education Department notified the University of California at Los Angeles that it had received reports that the university had “improperly and abusively targeted” an instructor who was investigated for reading aloud a racial slur in an online class discussion about the history of racism. Lt. Col. W. Ajax Peris, a political-science lecturer who is white, read from Martin Luther King Jr.’s “Letter From Birmingham Jail” and showed clips from a documentary that included images of lynching. Both included the slur.
The chair of the political-science department, Michael Chwe, complained about the lecturer’s decision to read the slur aloud and said students had expressed “distress and anger” over the lecture. He said he referred the complaints to the university’s Discrimination Prevention Office.
“The lecturer’s response to students’ concerns escalated the situation rather than engaging in the thoughtful and open discourse that we expect from our faculty,” the letter stated. Peris is teaching this fall, and his status with the university hasn’t changed, a UCLA spokesman said. He said the university’s policies are designed to protect both freedom of expression and the freedom to study and work in an environment free from discrimination or harassment.
The Education Department’s notice cited articles from conservative news sources, including Fox News, adding in a footnote that other media outlets, including The New York Times and The Washington Post, seemed “utterly incurious” about the controversy. “Targeting an instructor for reading from the works of Dr. King or showing a documentary quoting him is a direct assault on academic freedom and constitutionally protected free speech,” the Education Department wrote. It reminded UCLA that it has the authority to impose monetary or other penalties if it finds that the university substantially misrepresented the promises it makes on free speech.
Then, in August, the Education Department opened an investigation into Fordham University over its decision to discipline a student who shared two inflammatory photos on Instagram. In June, Austin Tong posted an image of David Dorn, a retired St. Louis police captain who was fatally shot during protests over the killing of George Floyd. Tong’s caption was “Y’all a bunch of hypocrites” — a reference, he said, to the fact that the police captain was Black, but that his killing hadn’t elicited the same outrage as Floyd’s.
Tong, who is Chinese-American, also posted a photo of himself holding a rifle that he captioned “Don’t tread on me #198964.” Tong said that was to commemorate the 31st anniversary of the Tiananmen Square massacre.
In July, Fordham put Tong on disciplinary probation, restricted his access to campus, and required him to complete antibias training. The following month, the Department of Education notified Fordham that it was investigating whether the university had misrepresented itself to students and parents by claiming to support free speech while punishing those whose speech goes against positions the university supports.
“Fordham promises to protect political dissenters from prevailing political orthodoxies, not to crush them,” the letter states. It adds that the university should have known that Tong was a good student who didn’t pose a credible threat.
A Fordham spokesman, Bob Howe, said the Tong case “is simply a code-of-conduct matter. It is not a gun-rights or free-speech matter.” Privacy rules prevent the university from commenting about the case further, he said.
A ‘Disproportionate Reaction’
Then last month, the department notified Binghamton University that it was investigating the university’s response to the clash over guns rights, as well as the disruption of a conservative talk the campus Republican group had been promoting.
The university said the BU College Republicans and another conservative group, Turning Point USA, hadn’t reserved the spaces where they had set up their tables and that they refused to move. Their materials, displayed hours after a California school shooting, included “provocative posters with gun imagery,” the university said. It defended its decision not to arrest students who disrupted the display, even though some may have violated university policies, saying that doing so would escalate an already volatile situation.
The Education Department contends that those who interfered with the display appeared to be part of an illegal conspiracy intended to “injure, oppress, threaten, or intimidate the College Republicans in the free exercise or enjoyment of their First Amendment rights.” It is investigating whether the university was misleading students and parents about the free-speech and free-inquiry rights it offers by selectively applying such policies “to discriminate against students based on the content of their speech and their decision to associate with groups such as the College Republicans. ... “
In a written statement, Ryan Yarosh, a Binghamton spokesman, said the university “is committed to freedom of speech, academic inquiry, and the exchange of ideas as part of our mission.” He said the university “maintains that we acted consistently with this mission and with the requirements of the First Amendment and the Higher Education Act.”
Jonathan Friedman, campus free speech project director for PEN America, a human-rights association of writers and editors, called the investigations and the threat of a funding cut a “disproportionate reaction” to controversies that could be better handled by campus administrators. “This is a blatant attempt to politicize these issues and score political points,” Friedman wrote in an email to The Chronicle. “It is part of this administration’s ongoing effort to undermine and attack colleges and universities. If the DoE actually wants to improve the climate for free speech and academic freedom, it should be working to improve public education and to support administrators facing these challenges, not cherry-picking incidents to use to retaliate against them.”
In a report released last year, PEN America said free-speech threats are coming from both the right and the left, and that state and federal policy makers are worsening the problem with “politicized and one-sided alarms” about the state of free speech.
The Department of Education did not respond to questions about the investigations, or how it selected which cases to investigate.
